Facts
Parties and procedural history:
The insured party (appellant), born in 1969, is insured against illness with the SWICA Health Insurance AG (respondent). On 4 September 2019, her treating physician, Dr med [B.] , applied to SWICA for cost coverage for WAL liposuction of the thighs and knees in two sessions to treat symptomatic lipedema. SWICA rejected the application in a letter dated 17 September 2019 after its medical examiner classified the procedure as not effective, appropriate or economical. Following a reconsideration request by the insured party and statements from her general practitioner Dr med [C.] , SWICA confirmed its rejection with a ruling dated 17 April 2020, which became final with the appeals decision dated 5 August 2020.
The insured party filed an appeal with the Social Insurance Court of the Canton of Zurich, which dismissed the appeal with a judgment dated 26 November 2021. The insured party then filed an appeal in public law matters with the Federal Supreme Court, which had to decide on the cost coverage for the liposuction procedures performed on 6 September and 28 October 2019.
Facts and subject of dispute:
The insured party suffered from lipedema stage II of the saddlebag/thigh type with knees (ICD-10 E88.21), which caused pain requiring treatment. Conservative measures (complex physical decongestive therapy and flat-knit garments) had proven unsuccessful. SWICA refused to cover the costs of liposuction, arguing that the effectiveness, appropriateness and economic viability of the method were not sufficiently scientifically proven at the relevant time (2019). The lower court concurred with this assessment and denied liability for the costs. The appellant alleged a violation of federal law, in particular Articles 25, 32 and 33 HIA, and requested that the cantonal judgment be set aside and that SWICA be ordered to cover the costs.
Considerations
1. Examination of appeal admissibility:
The Federal Supreme Court examines the appeal for a violation of federal law (Article 95 lit. a FSCA) and bases its decision on the facts established by the lower court (Article 105(1) FSCA). New facts and evidence are admissible only insofar as they were prompted by the lower court’s decision (Article 99(1) FSCA). The specialist article submitted by the appellant from the journal LymphForschung (2020) was considered a judicially notorious fact, as it constitutes generally accessible specialist literature.
2. Entitlement to benefits under mandatory health insurance:
Under Article 24 HIA, mandatory health insurance covers the costs of services that serve to diagnose or treat an illness and its consequences (Article 25(1) HIA), provided they are effective, appropriate and economical (Article 32(1) HIA). Effectiveness must be scientifically proven (Article 32(1), second sentence, HIA). The assessment is based on the state of knowledge at the time the therapy was prescribed.
3. System of benefit designation and presumption of effectiveness:
Under Article 33(1) HIA, the Federal Council may exclude medical services from cost coverage. Liposuction for lipedema was not listed in Annex 1 to the HIBO in force until 30 June 2021. This gives rise to a statutory presumption of entitlement to benefits, unless the health insurer demonstrates in the individual case that the therapy is ineffective, inappropriate or uneconomical. The lower court did not rebut this presumption, as the scientific evidence regarding the effectiveness of liposuction for lipedema in 2019 was deemed unsatisfactory but neither harmful nor ineffective.
4. Evidence regarding effectiveness and appropriateness:
The lower court relied on the Manual of the Swiss Society of Insurance and Medical Examiners (CCWO), which rated the scientific evidence for liposuction in lipedema as insufficient. While there was moderate evidence of improvement in pain and tendency to oedema, there was no clear proof of effectiveness. More recent studies (e.g. the submitted specialist article) did not…